THE Court of Appeal has ordered fresh hearing of a commercial case between Diamond Trust Bank Tanzania Limited and its customer Idrisa Mohamed over 26bn/- payments as damages, among others.
Justices Mbarouk Mbarouk, Rehema Mkuye and Ferdinand Wambali ruled in favour of the Bank after quashing some proceedings of the High Court of Zanzibar at Vuga on the matter.
They took into consideration one ground of appeal the Bank had lodged among five that had been presented, to the effect that the court had erred in law in continuing with the main suit without a specific order from the Chief Justice of Zanzibar to hear and determine the suit.
The justices agreed with the submissions by the parties to the dispute that it was very much clear that the procedures of all cases before the High Court of Zanzibar were supposed to be assigned to a judge by the Chief Justice, as per Section 13 of the High Court Act.
They noted from the proceedings that the trial judge had been assigned to deal with an application for interlocutory orders after another judge had withdrawn to conduct another application relating to restraining the Bank and its agents from selling the customer's residential property.
"It is a fact that (the trial judge) was not assigned to deal with the suit by the Chief Justice and he further admitted that he was not assigned to hear the main suit. He acted without instruction from the Chief Justice and hence lacked powers to deal with the main case," the justices said.
Referring to some decided cases, they pointed out that the Court could not normally justifiably close its eyes on a glaring illegality in any particular case because it has a duty of ensuring proper application of the law by the subordinate courts.
"Therefore, the circumstances in the instant case are such that we should intervene, because the illegality pointed out goes to the jurisdiction of the court. That entails at the end of it all, the decision of the High Court will not escape the wrath of being nullified," the justices said.
The justices went on to invoke their revisionary powers under Section 4 (2) of the Appellate Jurisdiction Act and "quash that part of the proceedings from May 15, 2017 where the (trial judge) started hearing the main suit to the end of trial... .
"... and set aside the default judgment thereof and the resultant orders. We remit the record to the High Court with the direction that the trial continues from where the main suit was supposed to start, before another judge to be assigned by the Chief Justices," they declared in their ruling delivered in Zanzibar.
The main claim between the parties was founded on banker-customer relationship whereby Mr Mohamed, who was the plaintiff in the trial, filed a suit against the Bank, who was the defendant.
He was claiming for a declaration that the usurious and exorbitant rate of penalty interest being charged by the Bank on his account was unlawful and unconscionable.
The plaintiff also claimed an order directing the defendant bank to render true and full accounts to him, specific damages to the tune of 26,320,200,000/- for alleged breach of contract and other 150m/- as general damages due to harassments allegedly caused by the Bank.